A.K. Sikri, J.
1. The present Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India which is in the nature of Public Interest Litigation. The petitioner has in the Petition highlighted the deplorable conditions of the colony Hospital in Delhi and has sought, inter alia, necessary directions to the respondents to improve the working and functioning of these hospitals on the lines of recommendations given by the Committee on upgradiation of these hospitals as per its report submitted in January, 1998.
2. While the aforesaid primary issue raised in the Writ Petition is pending consideration, the petitioner was prompted to file a miscellaneous application being CM. 8163/2002 in view of the threat of strike given by the doctors and the employees of the Government hospitals. Joint Council for Health Employees - an organisation of the employees which had given a call for strike was imp leaded as a party while issuing notice on the said application on 8th August, 2002 and the matter was directed to be listed on 9th August, 2002. As nobody appeared on behalf of the aforesaid employees-Organisation on 9th August, 2002 fresh notice was directed to be issued returnable on 13th August, 2002 and following Order was passed in the meantime:
'Issue fresh notice upon the newly added respondents returnable on 13th August, 2002, dusty as well.
However, we request Secretary, Ministry of Health to personally visit and inspect some of the hospitals where the employees are on strike and find out as to how far the hospital services are affected. Secretary, Ministry of Health shall submit a status report before the next date of hearing.
In the meantime, the respondents shall see to it that emergency services are run smoothly and endeavor is made to bring to an end the strike. Be it recorded that learned counsel for respondent No. 3 makes a statement that employees of the hospitals run by it are not on strike.
Copy of the Order be given to learned counsel for the respondents 1 and 2 under the signature of the Court Master.
3. When the matter came up for hearing on 13th August, 2002 the respondents informed that the employees had called off the strike and recording the statement to this effect, the aforesaid application was disposed of.
4. However, immediately thereafter i.e. On 19th August, 2002 the present application was filed stating that the officials of Joint Action Committee for Health Employees and other trade unions had threatened that they would go on strike from 19th August, 2002 to 23rd August, 2002. It was also alleged that in the strike the doors of the hospitals will be closed and none will be permitted to enter into the hospitals. It was also alleged that the strike will be for six hours every day commencing from 9.00 AM to 3.00 PM and during this period, nobody would be permitted to enter the hospitals' compound and apprehension was expressed that it was likely that the entire work of the Government hospitals under the respondents would be paralysed at the cost of the public and ultimately the poor persons will have to suffer. In this background prayer was made for direction to the respondents to take steps under the Essential Services Maintenance Act (ESMA) to prevent the strike.
5. This application came up for hearing on 23rd August, 2002. Although the date of the projected strike scheduled up to 23rd August, 2002 was over, learned counsel for the petitioner submitted that the Joint Action Committee for Health Employees had again threatened to go on strike from 2nd September, 2002. In view of the fact that the employees of these hospitals are resorting to strikes for few days at regular intervals, the Court deemed it proper to take cognizance of this application and accordingly notice was directed to be served for 28th August, 2002. Since the learned counsel for the respondents 1-3 had accepted notice in the Court, the respondent No. 4 i.e. Joint Action Committee for Health Employees was directed to be served for 28th August, 2002. The following directions were also given:
'In the meantime, the respondents shall take all steps to see that the threatened strike be prevented'.
6. When the matter came up for hearing on 28th August, 2002 learned counsel for the petitioner informed the Court that service on the respondent No. 4, had been effected. However, inspire of the service of notice, there was no appearance on behalf of the respondent No. 4. We have observed that even when C.M. 8163/2002 was filed and notice thereof was served upon the aforesaid employee union the employees union failed to respond or appear in the Court on more than one occasion. It is clear that for obvious reasons the respondent No. 4 and its office bearers have deliberately and intentionally avoided to appear in the Court.
7. Learned counsel for the respondent No. 2 i.e. Government of NCT of Delhi however informed that the said respondents had taken effective steps in the past to ensure that such strikes have no effect on the smooth functioning of the hospitals and in support the status report in respect of the functioning of various hospitals from 7th August, 2002 to 9th August, 2002 was filed. He further informed that the respondent No. 2 was also taking necessary steps to prevent the strike. For this purpose, Circular No. F.1/PAPHC/2002/324-3259 dated 27th August, 2002 was issued which is in the following terms:-
'During the past few days some employees belonging to Gr. 'C' and 'D' have been unauthorisedly abstaining themselves from duty, during their working hours, indulging in demonstration/dharmaand obstructing other employees from discharging their legitimate duties.
Even though the instructions for handling such situations have been issued from time to time, in the interest, of patient care, and ensuring normalcy in the hospitals, all HODs/MSs of the hospitals are hereby directed to take the following action:-
1. The policy of 'No Work No Pay' shall be followed strictly. This is the existing policy which has been endorsed even by the Supreme Court. All Head of Department shall check the attendance register not only in the morning and the evening but also at frequent intervals in between and send a daily report of the absentees to the M.S. This will not only cover the prospective cases, but also past unauthorised absence, during the current month.
2. The employees are not to be granted any kind of leave during the days of strike.
3. The Head of the Institution/Hospitals shall approach the appropriate Courts to prevent the disruption of services inside the hospital premises and to forbid any demonstration, dharna or any such activity within 200 mts of the hospital premises and to forbid any demonstration, dharna or any such activity within 200 mtrs of the hospital premises and also preventing any person from disrupting the services of the hospital, by locking/obstructing the workers from performing their duties. In such cases, police help may also be sought to register criminal cases against such elements.
4. Latest addresses of Gr. 'C' & 'D' employees must be complied and be readily available with the Medical Superintendents of Hospitals, for facilitating, further action, if any.
He also informed that the matter has already been processed for issuance of necessary notification under the provisions of ESMA for declaring the intending strike scheduled for 2nd September, 2002 onwards as illegal.
8. We are confident that necessary notification/orders to this effect would be passed before 2nd September, 2002.
9. In view of the aforesaid position as disclosed by the learned counsel for the respondent No. 2 we are of the opinion that required steps have been taken by the said respondent. However, it would be appropriate to find a lasting solution to such problems. We may at this stage point out that in the month of August 2001 the resident doctors Association of All India Institute of Medical Sciences had gone on strike. Considering it to be a serious matter, the Division Bench of this Court took suo moto notice. The Bench relied upon the observations of the Apex Court in the case of Surjeet Singh v. State of Punjab and Ors. reported in 1996 (2) SC 11, wherein it was observed that the right to life enshrined under Article 21 of the Constitution of India, would include the right against denial of treatment or even from being prevented from availing the services of any doctor or any other member of the staff from attending to patients and rendering medical assistance to them. This Court also relied upon the case of Vincent v. Union of India : [1987]2SCR468 , Consumer Education and Research Centre and Ors. v. Union of India and Ors. : (1995)IILLJ768SC and Paschim Banga Khet Mazdoor Samity and Ors. v. State of West Bengal and Anr. : AIR1996SC2426 while taking suo moto cognizance of the serious problem. In the said case, although the striking doctors had returned to work on 29th August, 2001, the Division Bench still proceeded with the matter in order to ensure that permanent measures are taken to tackle the problem as the grievances of the staff had still remained. After hearing the parties from time to time the Court disposed of the matter by Order dated 28th May, 2002 with the following directions:-
(i) A permanent negotiating machinery (PNM) be set up by the AIIMS as per annexure R-1 to their affidavit contained at pages 154-155 of the paper book subject to the modification which we are directing viz. that the Deans AIIMS shall be the Chairman and not the Director.
(ii) The said Committee will stand duly authorised to resolve any sudden incident which either disrupts or has the potential of disrupting the smooth functioning of the AIIMS.
(iii) The above said Committee will take a decision one way or the other, in any matter brought to its knowledge or coming before it in any manner whatsoever, within a period of thirty days of the matter coming up before it or coming to its knowledge. This period of thirty days is the outer limit indicated by us and within the said period of thirty days also, the Committee shall always remain cognizant of relative urgency of each matter, and the exigency of each situation and the matter will be processed most expeditiously and if required on day to day basis.
(iv) Unless the period of thirty days is extended with the consent of all the parties, or a substantial number of them in the meaningful sense of the term 'substantial' used by us in the previous phrase, those disputes which are not resolved by the PNM within fifteen days, would be referred to the adjudication of an Arbitration Tribunal comprising of the Health Secretary (Central Government), Director General of Health Services, Director AIIMS and Additional Secretary Labour or any other officer of equal rank from the Ministry deputed for the said purposes by the Labour Secretary, Government of India. This will however be subject to the condition that in the event of the dispute being one concerning any class of employees or any subject matter which is also subject to the jurisdiction of a statutory Tribunal under any Act of Parliament or under Government Rules, then unless they consent to decision by the Arbitration Tribunal, the party/parties will be entitled to avail the benefit of the statutory remedies.
(v) In case any party or parties are not prepared to submit themselves to the jurisdiction of the Arbitral Tribunal and opt/elect for other statutory remedies, they shall be subject to the condition that they will ventilate their grievances only by way of in those proceedings, and not by way of any direct action against the institution or any other employee or category of employees, or any other person or persons.
(vi) The Arbitral Tribunal shall take decision one way or the other in the matter within a period of three months which period shall only be extended with the consent of the parties. In case any of the parties does not cooperate, the Arbitral Tribunal will be entitled to proceed to decide the matter on the available records within the stipulated period.
(vii) The AIIMS will modify its Service Rules and terms and conditions to incorporate the above directions within the said Rules, and shall take all step necessary to make the same applicable and binding upon all categories of employees.
There shall be the following Code of Conduct applicable to all employees of AIIMS:-
(i) No employee of staff or faculty member will cease work for any reason whatsoever or disrupt the work, or aid, or abet such disruption or cessation;
(ii) No use of loud speakers or shouting of slogans, demonstrations, Dharna within the campus.
(iii) No meeting within the radius of 500 Mtrs. from the boundary of the Institute;
(iv) No interference in any official work.
(v) No resort to any disruptive activity.
(vi) All Trade Union activities will be carried outside the campus;
(vii) Any violation will result into disciplinary and other actions;
8. The Court while giving the aforesaid direction was not oblivious of the right of the agitated employees to resort to peaceful action. However, it found that the public interest, keeping in view the sensitive nature of the hospitals functioning, would outweigh other considerations and it was necessary to ensure uninterrupted and smooth functioning of each and every sphere of activity of the hospitals. It observed as follows:-
We are conscious of the fact that employees ordinarily also have a right to agitate their grievances by way of peaceful action including collective bargaining and collective action. However, considering the special circumstances of the institution and particularly the sensitive nature of such a hospital requiring the uninterruptedand smooth functioning of each and every sphere of activity as also the space and location constraints such a ICU/Emergency/Trauma Centre being all located close to the entrance and exit areas, and also Blood Bank facilities, life-saving medicines and devices being required at short notice, as well as unimpeded movement of medical and para medical personnel, it would be appropriate and in the interest of justice and also in public interest, that there should be no activity in the nature of strike, dharna or demonstration or gherao at, or in or around the AIIMS at all.
We however direct that any authority be it Police or the Labour Department or Civil or Delhi Administration of Health or Ministry of Health, to which any representation or complaint or request for taking action for resolving any discipline, is referred or brought to notice, or otherwise comes to notice in a manner warranting action, keeping in view the special circumstances of the institution such as AIIMS and our orders passed hereunder the action by all the authorities referred to above and any other departments before whom such matter comes up, shall be always dealt with and treated on utmost priority basis and if possible out-of-turn, and at all times will be so conducted as to give no occasion for any dispute or any disruption or prejudicial action to the smooth functioning of the hospital.
12. We are of the opinion that the treatment which was given to All India Institute of Medical Sciences in the aforesaid Order needs to be extended to all the hospital which are under the respondent Nos. 1 and 2 including L.N. Hospital, G.B. Pant Hospital, G.B. Eye Centre, G.T.B. Hospital, D.D.U. Hospital, S.G.M. Hospital, A.A.A. Hospital, Dr. B.S.A. Hospital, Atter Sen Jain Hospital, G.G.S. Hospital, L.B.S. Hospital, R.T.R.M. Hospital, M.B. Hospital, Malviya Nagar Hospital, Motinagar Hospital and Patel Nagar Hospital.
13. We, thereforee, expect that these hospitals will also set up a permanent Negotiation Machinery/Committee on the lines directed above, in each case and shall also consider the constitution of arbitral tribunal on the lines suggested in the case of All India Institute of Medical Sciences' case and make necessary modification in the Service Rules. They shall also adopt the Code of Conduct as suggested in para 6 of the aforesaid judgment in respect of their employees. The respondents shall also bear in mind the directions contained in para 8 of the judgment.
9. Application accordingly stands disposed of with aforesaid directions.